THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY BROWNE, RAFFERTY, BAKER, ORIE, ERICKSON, FOLMER, PIPPY, MENSCH, FARNESE, BLAKE, SCHWANK AND YUDICHAK, JUNE 21, 2011

REFERRED TO STATE GOVERNMENT, JUNE 21, 2011  

AN ACT

Amending Title 62 (Procurement) of the Pennsylvania Consolidated

Statutes, further providing for sole source procurement and

for competitive selection procedures for certain services.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Sections 515 and 518 of Title 62 of the

Pennsylvania Consolidated Statutes are amended to read:

§ 515.  Sole source procurement.

(a)  Determination.--A contract may be awarded for a supply,

service or construction item without competition if the

contracting officer first determines in writing that one of the

following conditions exists:

(1)  Only a single contractor is capable of providing the

supply, service or construction.

(2)  A Federal or State statute or Federal regulation

exempts the supply, service or construction from the

competitive procedure.

(3)  The total cost of the supply, service or

construction is less than the amount established by the

department for small, no-bid procurements under section 514

(relating to small procurements).

(4)  It is clearly not feasible to award the contract for

supplies or services on a competitive basis.

(5)  The services are to be provided by attorneys or

litigation consultants selected by the Office of General

Counsel, the Office of Attorney General, the Department of

the Auditor General or the Treasury Department.

(6)  The services are to be provided by expert witnesses.

(7)  The services involve the repair, modification or

calibration of equipment and they are to be performed by the

manufacturer of the equipment or by the manufacturer's

authorized dealer, provided the contracting officer

determines that bidding is not appropriate under the

circumstances.

(8)  The contract is for investment advisors or managers

selected by the Public School Employees' Retirement System,

the State Employees' Retirement System or a State-affiliated

entity.

(9)  The contract is for financial or investment experts

to be used and selected by the Treasury Department or

financial or investment experts selected by the Secretary of

the Budget.

(10)  The contract for supplies or services is in the

best interest of the Commonwealth.

The written determination authorizing sole source procurement

shall be included in the contract file. With the exception of

small procurements under section 514 and emergency procurements

under section 516 (relating to emergency procurement), if the

sole source procurement is for a supply, except for computer

software updates under $50,000, for which the department acts as

purchasing agency, it must be approved by the Board of

Commissioners of Public Grounds and Buildings prior to the award

of a contract.

(b)  Legal services contract.--The following shall apply in

the case of legal services procured under subsection (a)(5), in

which the attorneys or litigation consultants will be

compensated on a contingent fee basis:

(1)  Compensation shall not exceed 20% of a portion of an

award or settlement.

(2)  By February 1 of each year, the head of any

purchasing agency that is party to a contract in which the

method of compensation is on a contingent fee basis shall

submit a report to the chairman and minority chairman of the

State Government Committee of the Senate and the chairman and

the minority chairman of the State Government Committee of

the House of Representatives. The report shall list for each

contingent fee contract the parties to the contract, the

nature of the contract, the date the contract was entered

into, the date of termination, if any, and the rate of

compensation.

(3)  In addition to the requirements of paragraphs (1)

and (2) each contract for legal services shall include the

following provisions:

(i)  Commonwealth attorneys designated by the head of

the purchasing agency shall retain control over the

course and conduct of any legal action, retain the

ability to have direct contact with any party to the

action and participate in any conference call, hearing,

trial or settlement conference.

(ii)  The purchasing agency shall maintain the

exclusive power to accept a settlement.

(iii)  Notwithstanding the provisions of

subparagraphs (i) and (ii), Commonwealth attorneys shall

be subject to the Rules of Professional Conduct as set

forth by the Supreme Court in accordance with section

10(c) of Article V of the Constitution of Pennsylvania.

(c)  Definition.--As used in this section, the term

"Commonwealth attorney" means an attorney employed by the

purchasing agency who is eligible to participate in the

retirement system established under 71 Pa.C.S. Pt. XXV (relating

to retirement for State employees and officers).

§ 518.  Competitive selection procedures for certain services.

(a)  Conditions for use.--The services of accountants,

clergy, physicians, lawyers, dentists and other professional

services which are not performed by other Commonwealth employees

shall be procured in accordance with this section except as

authorized under section 514 (relating to small procurements),

515 (relating to sole source procurement) or 516 (relating to

emergency procurement).

(b)  Statement of qualifications.--Persons engaged in

providing the types of services specified in subsection (a) may

submit statements of qualifications and expressions of interest

in providing these services. The contracting officer may specify

a uniform format for statements of qualifications. Persons may

amend these statements at any time by filing a new statement.

(c)  Request for proposals.--[Adequate notice of] When the

need for the services specified in subsection (a) [shall be

given by] exists, the purchasing agency shall solicit the

services through a request for proposals. The request for

proposals shall describe the services required, list the type of

information required of each offeror [and], state the relative

importance of the particular information and disclose the method

of compensation.

(c.1)  Method of compensation.--If the head of the purchasing 

agency determines in writing that it is in the best interests of

the Commonwealth for the services to be provided on a contingent

fee basis, the head of the purchasing agency shall disclose in

the request for proposals required by subsection (c) that the

method of compensation for the procurement shall be on a

contingent fee basis.

(c.2)  Evaluation.--The relative importance of the evaluation

factors shall be fixed prior to opening the proposals.

(d)  Discussions.--The contracting officer may conduct

discussions with any responsible offeror to determine the

offeror's qualifications for further consideration. Discussions

shall not disclose any information derived from proposals

submitted by other offerors.

(e)  [Award.--Award shall be made to the] Selection for

negotiation.--The responsible offeror determined in writing by

the contracting officer to be best qualified based on the

evaluation factors set forth in the request for proposals[.

Fair] shall be selected for contract negotiations.

(f)  Fee for services compensation.--If the offeror is to be

compensated on a fee for services basis, fair and reasonable

compensation shall be determined through negotiation. If

compensation cannot be agreed upon with the best qualified

responsible offeror, then negotiations will be formally

terminated with the offeror. If proposals were submitted by one

or more other responsible offerors, negotiations may be

conducted with the other responsible offeror or responsible

offerors in the order of their respective qualification ranking.

[The contract may be awarded to the responsible offeror then

ranked as best qualified if the amount of compensation is

determined to be fair and reasonable.]

(g)  Contingent fee compensation.--If the offeror is to be

compensated on a contingent fee basis, fair and reasonable

compensation shall be determined through negotiation.

Compensation shall not exceed 20% of a portion of an award or

settlement. If compensation cannot be agreed upon with the best

qualified responsible offeror, then negotiations will be

formally terminated with the offeror. If proposals were

submitted by one or more other responsible offerors,

negotiations may be conducted with the other responsible offeror

or responsible offerors in the order of their respective

qualification ranking. By February 1 of each year, the head of

any purchasing agency that is party to contract in which the

method of compensation is on a contingent fee basis shall submit

a report to the chairman and minority chairman of the State

Government Committee of the Senate and the chairman and minority

chairman of the State Government Committee of the House of

Representatives. The report shall list for each contingent fee

contract the parties to the contract, the nature of the

contract, the date the contract was entered into, the date of

termination, if any, and the rate of compensation.

(h)  Contracts.--If an agreement was reached during

negotiations, a contract may be entered into between the

purchasing agency and the offeror. All contracts procuring

services under this section shall be in writing and posted in

accordance with Chapter 17 of the act of February 14, 2008

(P.L.6, No.3), known as the Right-to-Know Law.

(i)  Legal services contracts.--If the procurement is for

legal services, in addition to the requirements of subsection

(h), each contract for legal services shall include the

following provisions:

(1)  Commonwealth attorneys designated by the head of the

purchasing agency shall retain control over the course and

conduct of any legal action, retain the ability to have

direct contact with any party to the action and participate

in any conference call, hearing, trial or settlement

conference.

(2)  The purchasing agency shall maintain the exclusive

power to accept a settlement.

(3)  Notwithstanding the provisions of paragraphs (1) and

(2), Commonwealth attorneys shall be subject to the Rules of

Professional Conduct as set forth by the Supreme Court in

accordance with section 10(c) of Article V of the

Constitution of Pennsylvania.

(j)  Definition.--As used in this section, the term

"Commonwealth attorney" means an attorney employed by the

contracting agency who is eligible to participate in the

retirement system established by 71 Pa.C.S. Pt. XXV (relating to

retirement for State employees and officers).

Section 2.  The amendment of 62 Pa.C.S. §§ 515 and 518 shall

apply to contracts solicited or entered into on or after the

effective date of this section.

Section 3.  This act shall take effect in 60 days.